The Heritage Foundation

Backgrounder #1174

April 23, 1998

April 23, 1998 | Backgrounder on

Flouting the Constitution: Clinton's New ABM Treaty Lacks SenateConsent

The Clinton Administration is quietly implementing a package of arms control agreements that will have a profound impact on the ability of the United States to defend itself against ballistic missiles. In effect, these sweeping new agreements, signed in New York on September 26, 1997, will regenerate the 1972 Anti-Ballistic Missile (ABM) Treaty between the United States and the now-defunct Soviet Union. The ABM Treaty, a Cold War relic, prohibited each partner from deploying a homeland defense against strategic ballistic missiles and placed limits on testing and development. The Treaty crippled America's missile defense program from the date of its signing, and it continues to constitute the primary obstacle to protecting Americans from missile attack.

The United States should not be bound by the ABM Treaty because, since the fall of the Soviet Union in 1991, the United States has had no legal Treaty partner. The fact that both the Bush and Clinton Administrations have continued to observe the Treaty as a matter of policy in no way alters the fact that the Treaty is legally void. With no bona fide treaty partner, the United States has a unique opportunity--under both constitutional and international law--to escape this pernicious pact. However, if the Administration's new ABM agreements are fully implemented, they, like their antecedent, will continue to keep America in a state of vulnerability to the growing threat of attack from the world's deadliest weapons.

It is hard to conceive of an international agreement with greater significance for America's future security than the new ABM treaty. Yet the Clinton Administration has proceeded to implement it without the advice and consent of the Senate, as required both by Article II, Section 2 of the U.S. Constitution and by standing law. Compounding this constitutional problem is the fact that the Administration appointed an unelected and unconfirmed bureaucrat to make the New York agreements binding. Stanley Riveles, chairman of the U.S. delegation to the group that has just met in Geneva to begin implementing the ABM agreements, signed all but one of the New York documents even though the Administration never submitted his name to the Senate for confirmation. Historically, the post he holds has been of ambassadorial rank and subject to the accountability that goes with Senate review and confirmation. Thus, the Administration's approach in pursuing a new ABM treaty is more than an end run around the Senate; it is one that blatantly ignores the system of checks and balances and the Senate's treaty-making authority embodied in the U.S. Constitution.

THE NEW YORK ABM AGREEMENTS

The ABM agreements signed in New York include (1) a Memorandum of Understanding (MOU) on Succession to the ABM Treaty; (2) two Agreed Statements on theater missile defense (TMD) systems (generally referred to as the TMD "demarcation" agreements); (3) an agreement on Confidence-Building Measures; and (4) several other documents related to implementing the Administration's newly expanded ABM Treaty.

The Memorandum of Understanding
The MOU on Succession is the key "enabling" agreement because it purports to solve the problem of who succeeds the Soviet Union as America's treaty partner, which would rectify the lack of a legally valid ABM Treaty partner. It would convert the bilateral ABM Treaty of 1972 into a new multilateral treaty with Belarus, Kazakhstan, Russia, and Ukraine. In other words, the MOU would create four new treaty partners where none now exists. In the process, it would legally resurrect the lapsed ABM Treaty and perpetuate its prohibition on defending American territory against strategic ballistic missiles.

Once the MOU is ratified, it will breathe new life into the ABM Treaty regime. The TMD demarcation and subsidiary agreements will gain validity when the MOU is properly ratified "in accordance with the constitutional procedures of those states," as stipulated in Article IX, Section 1 of the MOU.

The Agreed Statements
Article IX, Section 4 of the MOU requires that each state ratifying the MOU shall be bound by the two Agreed Statements on theater missile defense. The Administration characterizes the TMD demarcation agreements as innocuous and claims they merely clear up ambiguities in the ABM Treaty. But when they become operative, they will constitute new restrictions on TMD systems that were not formally covered under the old ABM Treaty. For example, the second Agreed Statement on higher velocity TMD would ban space-based theater defenses, which were not banned in the old ABM Treaty (as long as they could not intercept strategic ballistic missiles).

Moreover, the two TMD demarcation agreements, in company with the Confidence-Building Measures, require an extensive exchange of information about the performance capabilities, testing, and program plans of TMD systems. This is exactly the same information used in the United States' own internal compliance review process to ascertain whether missile defense programs are complying with the ABM Treaty--and which already is notorious for tying U.S. ballistic missile defense efforts in knots. By providing this kind of information to Belarus, Kazakhstan, Russia, and Ukraine, the United States would be creating in essence a multinational compliance review process for TMD systems. The practical effect would be to give the other four parties a veto over U.S. theater defense programs; the practical consequence could be to limit the most promising new TMD systems, like the U.S. Navy's Theater Wide system.

The Theater Wide or "upper tier" system offers the most affordable and most effective near-term defense against a new generation of faster, longer-range theater missile threats. With a modest investment in the necessary system upgrades, it also could provide an affordable and effective near-term defense of the U.S. homeland against a limited attack by strategic ballistic missiles or intercontinental ballistic missiles (ICBMs). 1 But to adapt and deploy the Navy system to defend the "territory of its country" would require the United States to acknowledge that the 1972 ABM Treaty regime is dead. Rather than jeopardize the ABM Treaty, the Clinton Administration would jeopardize U.S. troops by allowing new limits even on TMD systems not previously covered by the Treaty--theater defenses, for example, that are vitally needed in Korea and the Persian Gulf.

Dubious Legal Standing
When pressed, the Administration acknowledges grudgingly that the legal status of the 1972 ABM Treaty is in doubt. On November 21, 1997, House International Relations Committee Chairman Benjamin Gilman (R-NY) received a letter from the President stating that the matter of ABM Treaty partners is unsettled. On March 3, 1998, Representative Gilman and Senate Foreign Relations Committee Chairman Jesse Helms (R-NC) sent a joint letter to the White House seeking further clarification of this question since the United States cannot have a treaty with itself and, without a legal treaty partner, there can be no binding obligations on the United States. The President has not yet responded, but his Administration's past actions bar the designation of Russia as the legal successor to the former Soviet Union under the ABM Treaty.

The New York ABM agreements, and especially the MOU on Succession, are the Administration's answer to this political and legal conundrum. But fearful that it could not get formal Senate approval, the Administration is proceeding as if the New York documents were already in force.

A PATTERN OF DISREGARD FOR LAW

The Clinton Administration knows a formal Senate debate on constitutional consent to this new ABM Treaty would reopen the entire question of whether it is in America's best interest to revive the underlying 1972 ABM Treaty. A full and open Senate inquiry would reveal to the American people that the government has left them deliberately vulnerable to the growing threat of attack from ballistic missiles armed with hyperlethal weapons in order to perpetuate a treaty that is both morally and strategically bankrupt, and legally dubious as well. Such a reprehensible policy would not pass congressional muster today.

The only way the Administration can achieve its plans to continue the ABM Treaty restrictions in force is by acting surreptitiously, behind a smoke screen of subterfuge and obfuscation, and it hopes to get down the road and past the point of no return before anyone in Congress realizes what it is doing. Consequently, the Clinton Administration is proceeding to implement the new ABM Treaty without the required advice and consent of the Senate.

The Will of the Senate

Congress has addressed the issue of the New York ABM package on several occasions, most recently and clearly in May 1997. As a condition of amending another arms control agreement--the Treaty on Conventional Forces in Europe (CFE)--the Senate required in May 1997 that the President submit for its advice and consent any new agreement that changed the geographic scope of the 1972 ABM Treaty or increased the number of parties to the ABM Treaty.

In its zeal to preserve the ABM Treaty, however, the Clinton Administration is ignoring the Senate's CFE condition. Worse, it is flouting both the Constitution and standing law. Article II, Section 2 of the Constitution provides that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur...." In other words, the power to make treaties is a shared power. The Senate's concurrence is a necessary part of the treaty-making process. This principle is reaffirmed in the Arms Control and Disarmament Act of 1961, 2 which prohibits any international agreement that would "reduce or limit the Armed Forces or armaments of the United States in a militarily significant manner, except pursuant to the treaty-making power of the President set forth in Article II, Section 2, Clause 2 of the Constitution"--a power which is specifically contingent on the Senate's advice and consent.

The Clinton Administration's cavalier disdain for the May 1997 CFE Condition, Article II of the Constitution, and the Arms Control and Disarmament Act demonstrates a pattern of disregard for the basic constitutional and legal processes of the nation. Such actions not only leave Americans in jeopardy of a devastating missile attack, but also jeopardize the very foundations of American self-government--the sanctity of the Constitution and the rule of law.

A New Treaty from "Under the Table"

The Administration has taken the first steps toward implementing the New York ABM agreements through the Standing Consultative Commission (SCC), the body established by Article XIII of the 1972 ABM Treaty to implement the terms of the Treaty. The SCC has just concluded its session in Geneva, the first since the New York agreements were signed.

Requisite Exchange of Information Has Begun
The four new parties that signed the New York MOU participated fully in the SCC session and behaved exactly as if the MOU on succession to the ABM Treaty were already in force. The customary opening exchange of information called for by SCC procedures on the status of Treaty-limited ABM systems was delivered to all four new states as if they were legitimate Treaty parties. Planning already is under way to include them in next fall's meeting of the SCC in the clear anticipation that their status as parties to the ABM Treaty will have been made permanent.

In addition to meeting as de facto Treaty partners, the new multinational SCC began to implement the subsidiary agreements that derive their legitimacy from reestablishment of the ABM Treaty regime under the MOU. For example, the TMD demarcation agreements and Confidence-Building Measures require Treaty partners to exchange various types of information and "assessments" on all types of ballistic missile defense programs "in a form and scope agreed upon by the Parties." The language of the document makes it clear that determining the form and scope of such information exchanges is activity that can legitimately be performed only after the agreement's entry into force--that is, after the ratification process that should include the advice and consent of the Senate. Nevertheless, that work began in Geneva. The five-nation representatives to the SCC discussed the format and extent of information exchanges on TMD capabilities, testing, and program status as if the New York agreements were already binding between the United States and the other four treaty parties. As the first steps in implementing the Agreed Statements on TMD systems, the United States has shared significant data on its TMD programs, creating in effect a multinational verification and compliance regime within the SCC on theater systems to undergird the implementation of the TMD-related agreements.

These are only initial steps, but they nonetheless are steps on the pathway to implementing a new ABM treaty that is now multilateral and that now explicitly covers TMD systems. These steps leave little doubt about the Administration's intent to proceed with the full implementation of the new ABM limits and obligations without Senate advice and consent.

U.S. Official Signing Agreements Without Proper Confirmation
As if to confirm the Administration's disregard of the Senate's right to approve the agreements, this activity--which has such immense potential impact on national security--is being carried out by a man who has never received Senate confirmation. The MOU on succession, the main element of the New York package, was signed by Secretary of State Madeleine Albright. But the subsidiary agreements, regulations, common understandings, and joint statement were signed by Stanley Riveles, chairman of the U.S. delegation to the SCC. The Clinton Administration has never submitted Mr. Riveles' name to the Senate for confirmation, although that is customary for the chairman of the SCC delegation, who traditionally has enjoyed the rank of ambassador. Mr. Riveles is well-known for his extreme views in favor of arms control, which may explain the Administration's unwillingness to send his name to the Senate for approval. Consequently, he has been able to avoid the accountability that comes with Senate confirmation. The Administration's refusal to submit his name to the Senate is another case of denying the Congress an opportunity to conduct an open debate on the merits of the New York ABM package. It is truly shocking that the U.S. could be committed to such sweeping new limits and legal obligations by a relatively low-level bureaucrat who serves without the accountability that Senate confirmation carries.

ABM Treaty Review Process Postponed
Finally, Article XIV of the 1972 ABM Treaty calls for review of the Treaty at five-year intervals. The five-year review was due in the just-concluded session of the SCC but was postponed until the next meeting, planned for September 1998. Clearly, the Clinton arms control team realized that the fate of its New York ABM package might be endangered by holding the highly visible five-year Treaty review concurrently with its attempts to bring the new ABM agreement into being "under the table."

WHY THE SENATE MUST ASSERT
ITS CONSTITUTIONAL RESPONSIBILITY

America's effective constitutional system and the success and stability of its government have rested on a unique system of checks and balances. This core principle of American governance retards the natural tendency of power to concentrate; that is, it keeps any single branch of the U.S. government from arrogating to much power to itself. No branch of the American government can make law unilaterally, without recourse by the other branches.

As a free, self-governing people, Americans pass laws through their elected representatives, by consent, and according to the procedures set forth in the "supreme Law of the Land"--the U.S. Constitution. Under Article VI of the Constitution, treaties made "under the authority of the United States" are part of this supreme law, not mere executive branch regulations or unilateral decisions of the President. The American people accept being bound by all the laws enacted through due constitutional process. In the case of treaties, their acceptance is registered by their fiduciary agents, their Senators, when two-thirds of those present concur with the President. According to the constitutional separation of powers and the system of checks and balances, Congress can pass a statute, but the President can veto it. The President can sign a treaty, but the Senate can "veto" it by withholding its consent.

No reasonable person of goodwill can argue that the New York ABM agreements are mere technical amendments or minor adjustments to the old ABM Treaty. It is a serious distortion of the facts to claim that the New York ABM package falls below the threshold that requires Senate approval of ratification. To revive the old ABM Treaty regime through the New York ABM package is a decision of extraordinary magnitude that someday could affect the lives of millions of Americans.

Implementing a new treaty of the magnitude of the New York ABM agreements without the advice and consent of the Senate makes a travesty of constitutional government. An agreement with such profound implications for U.S. security must have the approval of the American people, acting through their elected representatives. The Senate should not allow the Clinton Administration to create a new ABM Treaty without the proper constitutional imprimatur. This attempt calls into question the moral and legal authority of the national government, which derives its legitimacy primarily from its constitutional duty to "provide for the common defense." To shirk that duty by leaving the nation vulnerable to missile attack and to proceed with the New York agreements in blatant disregard of the Constitution is a matter of the gravest possible import.

But the Senate is equally accountable if it does not assert its rightful prerogatives--not just to maintain the nation's security, but also to preserve the rule of law and constitutional government. The Administration's conduct in this matter is reprehensible, but if the Senate does not act, it must share the blame. Whatever the political reasons for the Senate's neglect, they cannot obviate the Senate's solemn constitutional duty to approve treaties negotiated by the executive branch, especially when those treaties affect the safety and security of the American people.

The Administration, in the absence of resistance from the Senate, will be emboldened to go from bad to worse, committing the nation to a variety of new international obligations and further undermining America's security and sovereignty in the process. The Senate's leadership must act to force the New York ABM agreements into the daylight for a serious debate and a vote before the Administration's "under the table" effort hardens into a fait accompli.

CONCLUSION

It is up to those Senators who care about America's security and the future of constitutional government to make sure the Clinton Administration does not succeed in implementing the broad new obligations and restrictions in the New York documents as a mere executive agreement. The new ABM Treaty agreements must come before the Senate for advice and consent in a timely fashion. The American people, acting through their elected representatives in the Senate, must be given the chance to make the clear choice between defending America or remaining vulnerable to the growing threat of weapons of mass destruction, "defended" only by a discredited and outmoded ABM Treaty.

Thomas Moore is former Director of The Kathryn and Shelby Cullom Davis International Studies Center at The Heritage Foundation.

Endnotes

1. See Defending America: Ending America's Vulnerability to Ballistic Missiles, An Update of the Report of the Missile Defense Study Team ("Team B") (Washington, D.C.: The Heritage Foundation, 1996).

2. 22 USC, Sec. 2573.

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